Citation Nr: 1326052 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-18 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Esq. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from April 1992 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, granting service connection for a left knee strain but denying service connection for a right knee disability. The Veteran was scheduled for a hearing in June 2013. The Veteran failed to report to her scheduled hearing and VA has not received any statement of good cause for her failure to report. The Veteran's attorney confirmed her failure to report in a July 2013 letter to the Board, noting a continued inability to get in contact with the Veteran. As there is presently no statement of good cause for the Veteran's failure to report, the Board must at this time presume the Veteran has withdrawn her request for a hearing. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system reveals evidence that is duplicative of that contained within the Veteran's physical claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In July 2013, VA received a statement from the Veteran's attorney. It was noted that while the Veteran's right knee was examined as part of her left knee examination in October 2007, an opinion as to causation was only provided regarding the left knee. The Veteran's attorney has requested that if the claim cannot be granted at this point in time, then the Veteran be scheduled for a new examination of the right knee so that opinions regarding causation may be provided. There is presently insufficient evidence of record for the Board to decide this claim. Therefore, the Veteran's claim should be remanded so that she can be afforded a VA examination of the right knee. All necessary tests and studies are to be performed, and the examiner is asked to opine as to whether it is at least as likely as not that the Veteran's right knee disability manifested during, or as a result of, active military service. If it is determined that it is less likely than not that the Veteran's right knee disability manifested during, or as a result of, active military service, the examiner should opine as to whether it is at least as likely as not that her right knee disability was either caused by or permanently aggravated by her service-connected left knee disability. Finally, the most recent evidence of VA treatment of record is from July 2007. Treatment records prepared since this time should be obtained and incorporated into the claims file. Accordingly, the case is REMANDED for the following action: 1. VA Medical Center (VAMC) records prepared since July 2007 should be incorporated into the Veteran's claims file, either physically or electronically. 2. The Veteran should be scheduled for a VA examination of the right knee. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination and the examination report should reflect review of these items. All indicated tests and studies should be performed, and the examiner is asked to identify the proper diagnosis associated with the right knee and then opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service. If not, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran's right knee disability was either caused by her service-connected left knee disability, or, that it has been permanently aggravated as a result of her service-connected left knee disability. The examiner should note that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. A complete rationale must be provided for all opinions offered, and the lay assertions of the Veteran should also be considered and discussed. 3. The AOJ should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).